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tv   [untitled]    May 3, 2013 7:30pm-8:01pm PDT

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>> thank you. scott from the planning department. i would like to thank the member of the public to bring up the landscaping issue. that does state the final landscaping plans by the department of planning and the unbuilt portion of the site shall be to establish ground cover which would help stabilize the slope, minimize erosion and require minimal maintenance which is the area in question. so it would seem to conflict with this provision, this condition of approval. i think staff received these conditions previously. i think there was an error in the document in our records and for some reason when it was scanned in it was scanned in with the odd numbers on page 12. it was not publically available until last week until i went to the center
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and pulled a full copy and in reviewing that i looked at the appellant's argument and findings. i apologize for that. there were questions raised about if there had been an increase in the amount of fill back here or not. ire -- i think we have clear plans that existing proposed conditions that we can make a determination on and there is a fatal flaw on this permit and it's on the wrong property. perhaps the board can deny this permit and ask them to show existing and proposed condition and we can review that with plans for approval. but it seems that there is an issue and i think we will order the case file for this and see if there is any further information here. i did look at the hearings from the minutes on this item and there is no reference to the rear yard, and
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more issues about the street but we could see if this does not comply with conditions to approval. >> the only comment i have is that it's on the existing grid versus the deck issues is something that is less than 30 inches from the existing grid. i'm not sure about that but' we would about what mr. sanchez said that we would clarify what is on the existing grid because that is important on the planning code and building code as well. i'm not sure that was the case on this drawing. it probably maybe gotten this. we have another opportunity. >> what do you recommend as the
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appropriate process? >> well, i think we have to deny this permit and i don't think the conditions would be on a different address. i'm not too sure that that can happen with the condition permits because you are putting conditions on 1380 greenwich which is not here tonight. i think this permit has to be definitely denied. they need permits either way because the work is already done. they need permits. >> you can revoke the permit on the condition upon finalization of the new permit which requires departmental reviews. >> okay. >> that is a way to deal with this. >> you have been doing this a lot longer than me. you wrote that legislation.
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>> i'm losing track of these codes. there are so many of these. we have i believe all parties except perhaps one adjacent neighbor. is an agreement that the permit needs to be revoked? >> yes. >> the department will not accept this permit as is currently constituted. the revocation can't -- can be done by this board. >> why not? >> you said can't. >> if this permit had not been suspended, we would have revoked it anyway. >> what we can do as part of the revocation process condition the receipt of a new permit application which is
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undergone the appropriate reviews by both planning and yourself. >> i think the owners of 1380 greenwich are in support of this project. those people are not going to fight that. does that also include the deck issue that is supposed to be ground cover? >> planning is going to have their day in court reviewing it. >> i don't know if we can condition it on a new permit being issued on a different property. i think we just revoke. >> it's actually denying the permit. it's not issued yet. it's not a revocation. it's a technicality. it's a denial of the permit. >> i thought the erment was issued? the issuance by ddi
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but appealed. >> are you in disagreement with what i said that we could do? >> i don't understand how the board could do it. i would need to understand it better. if you are talking about a second permit which would need to be taken out by a different property owner, i'm not sure how. >> i don't think we can condition it. >> you could have done it with the same property owner. all right. >> i just, as the only member of the this board who heard this previous times, this case came in front of us and having to get through all of those conditions because it's extremely complex and convoluted, i was trying to put
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it to rest for all the parties concerned but i can't. i would support denial of the permit. >> any other comments? >> i'm going to move that permit be denied with the finding that the designated property owner on the permit was incorrect. >> commissioner, would you consider also adding that the permit was on the wrong parcel in addition, maybe that's the same designated property owner. >> the permit location was
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okay. was it not? okay. all right. then let's add that to it. >> so the basis is that the designated property owner and parcel were incorrect? >> right. >> we have a motion from commissioner fong to deny this permit and it's on the basis that the designated property owner was incorrect and that the address parcel was also incorrect. >> right. >> on that motion to deny this
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permit with those findings, that basis, president wong? aye, tad oh, aye, lazarus, aye, thank you. the vote is 5-0. this permit is denied on that basis. >> then we'll call the next and last item on our calendar. no. 13 -- 7. subject property at 4871 mission street pealing a notice of violation of penalty dated february 6, 2013. addressed to lucky group investments l l c regarding the operation of a financial service use. >> could you keep your voices down and take your conversation outside the hearing room. doing business as lucky money check
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cashing without authorization and violation of the planning code. we will begin with the appellant. you have seven minutes. >> thank you, board president, wong, my name is charles smith. i'm the attorney. i represent the lucky group. we appeal the notice of violation in the finding that lucky check cashing was operating without the required conditional use authorization. the predicate for that finding for the finding z a was that this business was a new fringe financial service therefore requiring such a conditional use authorization. our argument as setforth in our brief and as i will articulate here tonight is that this business not a new business and had operated continuously without disruption in that location for almost 20 years. i have a map which i
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hope will display. may i use the overhead? >> yes. >> i have extra copies that would be easier for the commissioners to view them. >> i would like an extra copy. >> there are six there. as our map sets forward. the business was operated at location no. 1, 4929 mistreat from 1984 to july of 1998. it moved to mission street which operated until july of 2007. the history of the maendz -- amendments to the substitute -- statute
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which are in hearing tonight was as of may of 2007. the board viewed as shown by public record of the board was a location for my clients business at that 5036 mission street. that's where it was located when the legislation was proposed. by the time the legislation was passed in june of 2008, the business moved to the location no. 3 at the top of the map which is 4569 mission street. there was no requirement, no argument by the city or anyone else that that move constituted a new fringe financial business in that location. the business operated there for four years when it then moved to its current location. as the map demonstrates, all of these
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locations are within a jesus -- geographical location and all in the neighborhood which is essentially the same during that half mile or so of the city. no difference in terms of the neighborhood where the businesses whatsoever. as the map demonstrates, the current location is within less than two city blocks from the location which was implicitly approved as an existing business when the legislation was passed in 2008. now, significantly, so, based on that argument and based upon that continuous use in operation over all those years in essentially the same half mile stretch despite the different locations, that business has operated continues
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ously in that location. therefore the findings that we were a new business subject to in 2008 in the legislation. the legislation is clear and the board of supervisors conduct shows that it's clear that the amendments in 2008 clearly applied to new fringe financial businesses in this district. the word new is in the history of legislation and in the language of the legislation. we clearly were not a new business. now, there is obviously an argument and i think perhaps where the confusion might have come in for the zoning administrator is the legislation was part of a broader legislation which also included the excels or alcohol.
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the expressed language of the statute requires that a change of location for a liquor store and alcohol business will trigger a requirement for a new permit, a new review, a determination whether or not that was in the best interest of the neighborhood. but as we lawyers like to use latin terms and there is a latin term in clues i don't see union use. scluz ex-sclus the inclusion of one is the exclusion of others where in the context where it's clear that the legislative body had the power to indicate a change of location is a significant item and subject to review and they include that in one statute as they did in the alcohol issue
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and they leave it out as to the other statute. it's not included when we deal with such fringe business. the law says that we must conclude that the legislative body knew they could have in included that change of location language if they had chosen to, but they did not and that is a significant point which i argue to the commission. if this was not a new fringe financial business but rather one that had operated there for all those years. now, as to the other point regarding the interior wall. that has been taken care of. it's no longer an issue. it's been done with the approval of the planning
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and zoning department and the signing is done by the determination by this board. this business has operated there with the proper local and state license since 1994. >> mr. sanchez? >> sure. >> thank you. scott sanchez with the planning department. it's located in the nc 3 zone center with the alcohol restricted use district. the controls of the fringe financial special use district in planning code. to provide a little bit of background very briefly. we received a
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complaint regarding the establishment about this location in 2011. we sent our first enforcement of this project and we didn't get it until july of 2012 because of backlog. we also received subsequent complaints about permits and we had two separate notices that went out regarding this and change of use location and subsequent to that staff realized this was within the fringe financial special use district which prohibited new establishment and sent enforcement notice says the use with a prohibited. the appellant has stated they tried after that time to discuss with staff the proposal and they have no record of any e-mail or phone calls from the sponsor
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or the number and lost communication with them in may with someone with lisa who no longer worked with the company. but ultimately we issued a notice of violation penalty and in november the hearing request on that and we received that and staff sat down with them and before the hearing the staff went over the that with me and -- allows a non-conforming business to relocate within a district and we informed the sponsor that we can issue conditional use that they can rely at this location. this provision 18 is would allow them to legalize and asked if we wanted to continue with the hearing and they said no. and we made them available to this process to legalize and they said no, they wanted to
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have this matter brought before the board of appeals and we obliged with the issue of notice of penalty. as stated they can, planning code section 181 allows that and i would point that in section 29.35 that they have provided in subsection e which the the fringe financial service district there is a section on a continuations of fringe financial uses. it may i
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continue in accordance and again emphasizing in accordance with 186.2 and 186.1 allows for relocation of existing non-conforming use within the same district with cu authorization. so i believe that it is very clear what the path for relocating an existing non-conforming use. this section says for relocation you need a cu. the appellant through some nice latin tried to throw this with use district. in like they would like you to believe they are were adopted as separate legislation. the ordinance 70
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-- 08 that established the control fringe for the financial. they are not actually part of the same piece of legislation and not part of the same section of the planning code. the section of the planning code that deals with this location, the fringe financial use district. this allows the non-conforming relocate to the non-conforming use district and they have not sought to a veil themselves which allows to relocate and they brought this matter before the board of appeals. i request that the board request the violation and penalties and i'm available for any
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questions. >> what is your understanding of the pediments or challenges they face in getting a c u? >> for the authorization. it's a matter of timeful certainly have they applied when we noticed them. >> is there any opposition in the community to this type of news is >> we received one complaint but i'm not aware of any opposition. that is something that would be found out during the enforcement process. i don't think anyone came in regards to this item. >> the complaints were anonymous, weren't they? >> i believe so.
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>> question for you is it seems like the premise that for your determination hinges on the definition of what is non-conforming. if this use is allowed in that district, and it's not a new use, is it non-conforming? >> so in this special use district, it states that these uses are allowed to continue subject to the limitation of planning code section 180 which are non-conforming uses and 1861 only allows with the conditional use authorization. it's a strict line connecting the special use district to the cu requirement. >> we keep asking about the
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intent of these statutes. what's the intent to limit these types of establishment because there is so many in the city and concerned about the interest rates. >> that it's causes the city to regulate these uses. the concern about that and no new uses are allowed hover they have the ability to continue an existing legal use which is what we have offered to them. >> i have a question as well. so, after the legislation was law, they already have already moved one time prior? so, does that mean that they were operating non-conforming the whole time? >> that is an excellent question and i think that in
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our presentation of this to the appellant that we were probably somewhat liberal and flexible and saying they can -- a veil themselves of this process an they have been changing the location but found that they did establish that the previous location prior to the -- and that was the location no. 3, they established their prior to this special use district coming into effect whether or not they have a permit at that location indicate we were trying to apply some flexibility here and an allowing them to go through process. >> all the cases are sounding alike today, aren't they? conforming, non-conforming, limited use. >> one maybe for giving for not
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object obtaining a permit for use. >> the permit has been declared. >> they would need a permit for legalizing the business upon authorization. >> okay. thank you. >> mr. sanchez. one last question on that. the conditional use process runs with the property; not the business. how does that work. >> the conditional use authorization requires the previous use to be abandoned and so a check cashing space can not relocate at the previous location as part of the planning commission's decision to allow relocation to this establishment because right now, i think other use t previous location no. 3, is my understanding to a converted use so that has effectively been abandoned but the new
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location has not been legalized through the proper process. they should have gotten a cu when they moved in 2011. >> thank you. >> is there any public comment on this item? seeing no public comment we'll start with rebuttal. >> i have listened during the time in here during the interesting exchange with the whole thing regarding non-conforming with the conforming uses. the fact is that the business has been there since 1994 in that neighborhood. no legislation prohibited it. no legislation outlawed it and no legislation made it a non-conforming or any other term. always been a legal use. when the legislation came into effect, that didn't make it an illegal or non-conforming
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use, i would argue. it remained that way and just factually in terms of commissioner fong's questions about the change of location, the facts are that the three previous locations were all rented where the business owner was at the whim of a landlord. the current business is owned by the lucky group. so it's different. so unlike the residential cases where we lived to before where the owner has decide to change the use of his property, those are in opposite to what we are dealing with here. i also listened mr. sanchez talk about procedural mistakes that perhaps my client made in not following the right procedural path, but i would simply argue that i ask the board to put substance over procedure. if at the end of the day the argument
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is accepted that this is not a new fringe financial business in that neighborhood, but rather the continuations of an existing one and the city for good decent reasons has been argued should limit businesses of this nature. well, fine. don't let anyone else into that neighborhood. there are already several businesses in that neighborhood doing what my clients do. to punish my client by simply changing locations by a few blocks doesn't make sense. >> how do you get around 18 -- how do you get around that? >> i asked my architect which is much more --